TMI Blog2003 (12) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 42 of the said Act and the Deputy Commissioner of Excise, who informed P.W. 1 about the secret information, was also not examined. He submitted that the violation of Section 42 of the said Act and the failure of the prosecution to examine the said Deputy Commissioner, who had initially received the secret information, cast a suspicion on the entire foundation of the prosecution case. Shri Bose referred to the decisions of Koluttumottil Razak v. State of Kerala, 2000 SCC (Cri) 829 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 SCC (Cri) 496 to substantiate his point that non-recording of the information received by the raiding team leads to infraction of Section 42 of the said Act. 3. He further submitted that the provisions of Section 50 of the said Act were not at all complied with. Shri Bose argued -that as the raiding team apprehended the appellant on the basis of a prior information and there was search of the appellant the provisions of Section 50 of the said Act would be applicable; but, the procedural formalities relating to the provisions of the said Act were not complied with. He submitted that the Gazetted Officer ought to have been an independent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission of Shri Bose. Shri Mallick took us to the text of the examination of the appellant under Section 313 of the Code of Criminal Procedure. He referred to question No. 3 of the said examination and submitted that the appellant could not give proper explanation about the incriminating articles having been found from his possession. He submitted that in view of Section 54 of the said Act the appellant should have rebutted the presumption with regard to the possession of the articles. 10. Shri Mallick further submitted that as there was always presumption of culpable mental state in Section 35 of the said Act and as the prosecution has been able to bring home the charge against the appellant in the absence of proper discharge of the onus the prosecution case stood proved. 11. Refuting the submission of Shri Bose that Section 50 of the said Act would have application even if the article was recovered from a bag Shri Mallick referred to the decision of a learned Single Judge of the Madras High Court in U. Kriahnan alias Kittu v. State, 2000 Cr. LJ 2887 and also referred to the Supreme Court decision in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under Sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior . 16. In other words, unless there is search of any person the provisions of Section 50 of the said Act has no manner of application. The argument of Shri Bose touching on the question of Section 50 of the said Act and its allied infirmities falls like a house of cards in view of the galaxy of decisions of the Apex Court on this point. The Apex Court in Sarjudas and Anr. v. State of Gujarat, 1999 SCC (Cri) 1501, Kanhaiya Lal v. State of M. P., 2000 SCC (Cri) 1.494, Khet Singh v. Union of India, 2002 Supreme Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act will have no manner of application as the contraband articles were not recovered pursuant to the search of the person of the appellant the other ancillary points raised by Shri Bose touching on infraction of Section 50 of the said Act i.e. the question of right of the appellant to be searched by a nearest Gazetted Officer, and that P.W. 3 although a Gazetted Officer was a member of the raiding team and the appellant ought to have been taken to the nearest independent Gazetted Officer or a Magistrate pale into insignificance and require no further discussion. 22. Secondly, Shri Bose complained about non-compliance of Section 42 of the said Act by the prosecution which according to him vitiated the trial and the resultant conviction of the appellant and he referred to two decisions of the Supreme Court in Koluttumottil Razak vs. State of Kerala (supra) and Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra)-the same has to be appreciated in the fact situation of the present case. 23. We find P.W. 1 a Sub-Inspector of the Excise Department being the Officer-in-Charge of the special squad was directed by the Dy. Commissioner of the Excise on 28.7.98 at about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. 27. While Section 43 speaks of the power of seizure and arrest in public place by any officer as specified in Section 42. In the Explanation to Section 43 'public place' includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public. 28. It is seen that the entire episode of the apprehension of the appellant and resultant recovery of the articles (Mat. Ext. III) were made by P.Ws. 1, 2 and 3 on a road-crossing near a bus-stand known as Gopalnagar More bus-stand and as the said place is very much a public place the provisions of Section 43 of the said Act has application. 29. That apart, although it is true that P.W. 1 had received direction from his Superior Officer - Dy. Commissioner of Excise that there was secret information that the appellant was involved in dealing with heroin. It is the information received by the said Dy. Commissioner and not by P.W. 1. Information which ought to have been recorded was not P.W. 1, but, by the said Dy. Commissioner (who was not examined) and was supposed to be sent to his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the spot bears the signatures of the appellant and P.W. 1 and P.W. 2. 34. The entire aspect of the matter is quite credible and inspires confidence in the mind of the Court. 35. After apprehension of the appellant on the spot on 29.7.98 he was produced on the very same date (29.7.98), as we find from the records of N.D.P.S. Case No. 84 of 1998 of the Court of the learned Judge, Special Court, 24-Parganas (South), Alipore. 36. A perusal of the evidence of P.Ws. 1, 2 and 3, the officers of the Excise Department, does not in any way make us feel that there is any discrepancy or any infirmity on the face of it which can given even a slightest impression in the mind of the Court that something is lacking and there is somewhere a missing link which can raise a ring of suspicion about the entire process which we do not find from the evidence and materials on record, which we have gone through with utmost circumspection. In view of the same the argument of Shri Bose with regard to Section 42 of the said Act has no appeal. 37. Thirdly, this brings us to the argument of Shri Bose on the question of Section 52A of the said Act which we are equally afraid cannot in any manner come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of P.W. 5 on the very next day of the seizure and the members of the raiding team (P.Ws. 1 and 2) and the independent witness (P.W. 4) deposed in Court that they found the Alamat in order along with the signatures. The entire process, apart from being absolutely transparent, shows that there was a seizure of the contraband articles from a plastic bag carried by the appellant, which he could not account for and the search and seizure has been quite established through the evidence of the prosecution witnesses. 41. The question of application of Section 52A of the said Act, in our respectful view, in the present case, cannot affect the merit of the prosecution case in any manner whatsoever as the prosecution has been able to bring home the charge against the appellant beyond any reasonable doubt on the basis of convincing and clear evidence which we are inclined to accept. 42. Once we have found that the conformance of Section 52A of the said Act cannot have any effect on the merit of the case, the point canvassed by Shri Bose has to be discarded. 43. After all what is the legislative impact of Section 52A of the said Act in the Statute Book? This has to be understood from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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